Authors:Caralyn Blaisdell; Fatmata K Daramy, Pavithra Sarma Abstract: In this article, we offer methodological and ethical reflections from our research project, “The Impact of the Covid-19 Pandemic on Children of Colour in Scotland: Visions for Change”. The project was conducted from January to July 2021, largely under Covid lockdown conditions. Our reflections take the form of creative writing, spoken-word poetry, images and reflective writing. Particularly, we highlight the ongoing, enmeshed and entangled nature of researcher and researched and how this relates to extractive practices, ethical care and navigations of systemic racism in children’s rights research with children of colour. We do so by positioning ourselves and our personal narratives, at times, as axles within this piece of work using Unarchigal (உணர்ச்சிகள்)—Modalities of Resistance, which is an embodiment resistance approach created within postcolonial radical feminist autoethnography. We suggest that researchers might consider similar reflexivity around these issues in their own children’s rights research. A note for readers: in keeping with the enmeshed nature of researcher and researched, particularly as two researchers are women of colour, we use swearing in one section via spoken-word poetry. Swearing is framed as a coping mechanism and response to narratives witnessed in the project, alongside the navigation of systemic racism and the colonial edifice that children and young people of colour and their families are forced to navigate. There will be usage of Pavi’s mother tongue, Tamizh (Tamil), via phrases and a few sentences alongside translations, capturing these intimate reflections. Keywords: children’s rights; anti-racism; ethics; auto-ethnography. PubDate: Mon, 01 Jul 2024 00:00:00 +000
Authors:Susie Bower-Brown Abstract: More and more young people are identifying their gender in different ways, and gender diversity at school has become an increasingly debated topic. Within the United Kingdom (UK), sociopolitical discourse has become progressively fractured, with the UK Government recently releasing controversial draft non-statutory guidance prohibiting social transitioning, or the changing of names, pronouns and/or appearance amongst gender-diverse individuals at school. One term which has been increasingly utilized in this discourse is “safeguarding”, a term which refers to the practice of promoting child welfare and protecting children from harm. Safeguarding is a key consideration when discussing gender inclusion at school. However, harmful and discriminatory policies, such as “outing” gender-questioning children to their parents, are now being mislabelled as safeguarding practices. This article will argue that the concept of safeguarding, and wider discourses around child vulnerability, are being misappropriated in order to justify anti-trans policies. This article will explore the current UK discourse around gender-diverse children at school, demonstrating that gender-diverse youth are perceived as both vulnerable to “gender ideology” and a threat to others at school, a social positioning that serves to restrict their rights and agency. This article will discuss the ways in which the term safeguarding is being weaponized against gender-diverse children, before reviewing the social scientific research on risk and protective factors for gender-diverse youth, to understand what safeguarding gender-diverse children actually means. Keywords: gender diversity; trans; school; cisgenderism; safeguarding; childhood. PubDate: Mon, 01 Jul 2024 00:00:00 +000
Authors:Debra L DeLaet; Brian D Earp, Elizabeth Mills Abstract: This article examines protection gaps for children with intersex traits under international and national laws governing non-voluntary medicalized interventions into sexual anatomy. Various United Nations (UN) bodies, including the UN Special Rapporteur on Torture, the Office of the High Commissioner for Human Rights, human rights treaty-monitoring bodies and the Human Rights Council, have called for full acknowledgment and substantive protection of the rights of children with intersex variations—as with all children—to bodily integrity and (future) bodily autonomy in relation to their own sexed embodiment. However, these global norms generally have not been codified under international law, and most countries have not passed adequate, or any, legislation to secure these rights. We review relevant global norms, international human rights treaties and legislative developments in a range of countries to illustrate potential pathways for closing legal gaps in the protection of all children’s rights to bodily integrity and (future) bodily and sexual autonomy. Keywords: bodily integrity; children’s rights; gender binary; non-voluntary medical interventions; human rights; intersex. PubDate: Mon, 01 Jul 2024 00:00:00 +000
Authors:Marianna Iliadou Abstract: This article examines statelessness resulting from international surrogacy arrangements by exploring whether there is protection afforded under international law and the overall consequences of statelessness for surrogate-born children. The aim of this contribution is to shed light on the statelessness problem in view of recent developments in the field. In particular, for an updated and holistic approach to surrogacy and statelessness, this contribution advocates for the United Nations Convention on the Rights of the Child 1989 (UNCRC) to be read in conjunction with the recently established Verona Principles. These Principles are specifically designed for international surrogacy, able to complement the existing UN protection, and it is argued that a combined reading of the UNCRC and the Verona Principles provides stronger protection of children’s rights. In addition, this contribution aspires to bridge the gap between legal and other consequences of statelessness, with the latter often overlooked in the context of surrogate-born children. To explore the above, this article first addresses the phenomenon of statelessness for children born through international surrogacy via an examination of conflicting laws and international surrogacy cases. The article then discusses how this state of affairs infringes the rights of the surrogate-born children, and in particular the right to acquire a nationality (Article 7 UNCRC). It is also submitted that, for surrogacy, Article 7 UNCRC should be read in conjunction with the recently established Verona Principles for a more holistic protection. Finally, this article examines the harmful effects that result from the surrogate-born children’s statelessness, advocating for a more comprehensive approach that goes beyond the strictly legal consequences of statelessness. Keywords: surrogacy; statelessness; UNCRC; nationality; citizenship; cross-border assisted reproduction. PubDate: Mon, 01 Jul 2024 00:00:00 +000
Authors:Carmelo Danisi; Tomas Caprara Abstract: This contribution analyses the complex problems arising from the application of the United Nations Convention on the Rights of the Child (UNCRC) to the Holy See. Taking the continuous scandal of sexual abuses on children within the Catholic Church as a case study, it highlights the still persistent tension within international law between the protection of sovereignty and the full enjoyment of human rights, including children’s rights. To this end, after a preliminary analysis of the Holy See’s sui generis international legal personality, this contribution investigates two issues that prevent the Holy See from being held responsible for violation of children’s rights under international law. First, it examines the attribution of the conduct of local bishops/priests accused of sexual abuses worldwide to the Holy See, also in light of Pope Francis’ latest institutional reforms. Second, it addresses the immunity granted to the Holy See in these circumstances, thus questioning the rationale of such immunity when children are involved. Indeed, this article argues that, despite the Holy See having ratified the UNCRC (Article 34 of which calls on parties to protect the child from all forms of sexual exploitation and sexual abuse), children’s rights and their best interests are generally ignored when the sexual abuse plague within the Church is encountered in international fora. Keywords: UNCRC; Holy See; Vatican City State; international law of responsibility; immunity; sexual abuses. PubDate: Mon, 01 Jul 2024 00:00:00 +000
Authors:Maria Mercedes Frabboni Abstract: This article analyses the role of the child as an author and creative individual, according to the paradigm of Maria Montessori, to expand the question of whether the law provides a sufficient and just safeguard to this category of copyright authors. Montessori’s exploration of the creative freedom of children shows how irresistibly strong and indomitable their creativity is in the early years. This article submits that the early years are a most significant phase when children, in their exercise of creative authorship, are able to express the utmost freedom and originality. Accordingly, a scholarship of copyright law “of” the child and, significantly, authorship “by” the child should be at the core of a just and balanced legal system that brings together the rights and safeguards embedded within international rules and the copyright framework. Keywords: children; creativity; copyright; education; United Nations Convention on the Rights of the Child; Montessori; ingenuity; expression; originality; creative choices. PubDate: Mon, 01 Jul 2024 00:00:00 +000
Authors:Kristen Hope; Dhruv Bhatt, Januka Jamarkatel, Brian King, Osish Niroula, Jeshis Jamarkatel, Siroun Thacker, Amrit Rijal, Purnima Bhattarai, Rodoshee Sarder, Samikshya Dahal, Prathit Singh Abstract: This article presents the work of a group of child rights activists including children, young people and a supporting adult, who creatively convey their thoughts and feelings about the most pressing contemporary issues in the field of children’s rights and explore implications for intergenerational co-authorship in the child rights space. The children and young people decided to use poetry as a form of communication to express themselves about the challenges and aspirations of being child rights activists in an era of polycrisis, and they then worked together to analyse the poems, identifying cross-cutting themes around mental health, navigating power relationships and demands for a more inclusive, equitable future. The text of the article contains links to online video recordings of the authors performing their poetry, inviting readers to immerse themselves in a multi-sensory experience of child-led, child rights scholarship. Accordingly, the article presents an exploration of imaginative, interactive and intergenerational scholarship on children’s rights and suggests that co-creation with children may provide a way of upholding children’s rights while making space for new epistemologies that challenge Eurocentric, adultist norms of knowledge production in the child rights space. Keywords: child rights; child participation; arts-based methods. PubDate: Mon, 01 Jul 2024 00:00:00 +000
Authors:Justice Sir Dennis Adjei Abstract: Freedom of expression has become a household phrase, but its meaning is deeper than first appears, as found in some international instruments and national laws. The Universal Declaration of Human Rights, the first human rights instrument adopted by the United Nations (UN) General Assembly Resolution in Paris on 10 December 1948 to abate human rights violations and atrocities after the Second World War, addressed freedom of expression as one of the touchstones of democracy. Presently, all 192 member states of the United Nations have signed up to it, by virtue of the other UN treaties they have signed, even though it was intended to be a soft law. The Declaration was signed as a soft law to be respected but was without binding force. however, through the passage of time, it has become a customary international law with binding force. Freedom of expression, which is an inalienable right, permits human beings, among other things, to seek information, and if received, the recipient may impart the same through any media, regardless of frontiers, to inform and educate people about their rights. The importance of freedom of expression is that it is one of the pillars of human rights and is found in all the relevant international and regional human rights instruments. The international human rights instruments that have provisions on freedom of expression are: the International Covenant on Civil and Political Rights (ICCPR), which came into force on 23 March 1976, after it had been adopted for signature, ratification and accession by the UN General Assembly on 16 December 1966; the International Convention on the Elimination of All Forms of Racial Discrimination, which was adopted by the UN General Assembly on 21 December 1965; and the Convention on the Rights of the Child, which was adopted by the UN General Assembly on 20 November 1989 and came into force in September 1990. All three regional human rights instruments have recognized freedom of expression as an indispensable part of human rights and have provisions for it. The three regional human rights instruments are: the European Convention on Human Rights (ECHR), which was signed in Rome in 1950 and came into force on 3 September 1953; the African Charter on Human and Peoples’ Rights 1981 (ACHPR), which came into force on 21 October 1986; and the American Covenant on Human Rights (ACHR), which was adopted in 1969 and came into force on 18 July 1978. Freedom of expression is also recognized by the Declaration of Human Rights Defenders, which came into force in 1998 to protect human rights defenders within the context of their work. The rights specifically mentioned in the declaration include freedom of expression. There are also national laws on freedom of expression. The position of Ghana is contained in Article 21 of the Constitution of Ghana 1992, which guarantees freedom of speech and expression, which include freedom of the press and other forms of media such as social, print and electronic media. The article shall address the limitations placed on freedom of expression, even though it appears to be absolute when one reads Article 19 of the Universal Declaration of Human Rights. Article 19 of the ICCPR seems to suggest that freedom of expression is not absolute, and a person who seeks information may impart it through any media, including social media, upon receipt of the same, provided the information put out on media, including social media, is within the limitations placed on freedom of expression. Article 9 of the ACHPR also suggests that the right to receive information is absolute, but the right to express and disseminate opinion shall be within the law prescribed by the member states. Freedom of expression is a term of art and such freedom may be expressed in the form of writing, orally, print, or any other form of art or pictorial representation, and the limitations are placed on any of the modes and forms of expression stated above. Article 13 of the ACHPR prescribes criminal punishment for a person who goes beyond the limitations placed on freedom of expression with the aim of protecting public order, social order, national security, public health, public morality, and respecting the rights or reputations of others. The article aims to discuss all the limitations imposed on freedom of expression, including those punishable either civilly or criminally, or both, for the purposes of respecting the rights of others and not defaming or slandering another person, protecting national security, public order, public health, or morality. The recent trend of events is that people go on social media to defame others, violate their rights, cause fear and panic, and publish information about security threats, public order, and morality with impunity under the guise of freedom of expression. Social media, as a set of interactive internet applications, facilitates the creation, curation and sharing of the contents of information created either by individuals or in collaboration with others, and at the moment it seems to be the fastest form of media. The article shall discuss freedom of expression and its limitations from different human rights instruments and domestic statutes in respect of sanctions that can be imposed on a person who goes beyond their rights to violate the rights of others or defame others, or on a person who has published material that would affect the security of the state, public order, public health, or morals. It shall further discuss the forum where an action may be brought against the person who violates the rights of others in the name of freedom of expression and the appropriate forum where a person charged with an offence under it may be prosecuted. Keywords: admissibility of evidence; communication; African Charter on Human and Peoples’ Rights; criminalization of freedom of expression; documentary information; freedom of expression; International Covenant on Civil and Political... PubDate: Mon, 01 Jul 2024 00:00:00 +000
Authors:Neels Kilian Abstract: This article discusses the legal implications of an insurance net premium. A net premium refers not only to a single premium but also to premiums in the aggregate, commonly referred to as a loss ratio calculation. This calculation is relevant to a specific agent of an insurance company, namely a binder holder, the equivalent of which as regards Lloyd’s of London is a cover holder. A binder holder is a South African approach to a cover holder and acts as an insurance company without an insurance company licence in order to, for example, draft policy wordings, and accept or reject claims. The article discusses an instance where the court did not consider the importance of a binder holder and a net premium, nor the importance of a bordereau and how it related to the business activities of Prosper Funeral Solutions. Keywords: cover holder; binder holder; net premium; loss ratio; acknowledgment of debt; bordereau; premium collection company. PubDate: Mon, 01 Jul 2024 00:00:00 +000
Authors:Dominic Spenser Underhill Abstract: On 29 November 2023, the Court of Appeal held in James Churchill v Merthyr Tydfil County Borough Council, that the courts of England and Wales are entitled lawfully to order parties to engage in non-court-based dispute resolution processes. This important decision should not come as a surprise. This article will argue by reference to case law, judicial commentary and the Civil Procedure Rules (CPR) that this decision is the most recent expression of an impulse the courts have long maintained: that a case can be dealt with justly by moving (by various means) litigants away from the judgment seat to one of negotiated, consensual outcomes. The decision corrects an anomaly within the CPR that obliges parties to further the overriding objective by considering alternative dispute resolution but deprives the court of a particular remedy to enforce that obligation. This article will trace the roots of the Court of Appeal decision and identify to what extent it is the natural progression in judicial thinking, and it truly breaks new ground. Keywords: ADR; justice; civil justice; court reforms; overriding objective; Halsey; CPR; Churchill v Merthyr Tydfil; Article 6; arbitration agreements. PubDate: Mon, 01 Jul 2024 00:00:00 +000
Authors:Mei Ning YAN Abstract: In Hong Kong, the Court of Final Appeal in HKSAR v Choy Yuk Ling (CFA 2023) quashed the convictions of a journalist who was accused of knowingly making false statements in her search requests of a government-maintained vehicles register containing personal data crucial to newsgathering. The Court held that the relevant search purposes should not be narrowly construed to exclude bona fide journalism; regard has to be given to freedom of speech and of the press; and data protection law permits disclosures of personal data in the public interest for news activity purposes. However, this decision was soon overturned by the Government’s new measures which in effect prevent any search of the register for journalistic purposes. In early 2024, the enactment of the Safeguarding National Security Ordinance by the Government has further eroded the right to newsgathering of Hong Kong journalists. Keywords: Hong Kong; Court of Final Appeal; newsgathering; freedom of speech and of the press; protection of personal data; Safeguarding National Security Ordinance 2024. PubDate: Mon, 01 Jul 2024 00:00:00 +000
Authors:Alankrita S Abstract: This paper presents the art series “Walled”, in which I depict my reflections on the experiences of children in conflict with the law in state-run facilities—how and why they might feel walled. The walls in the six paintings symbolize barriers to children’s participation. They are dark and seemingly insurmountable, yet make way for windows and light that represent children’s agency. In doing so, I draw on my experience of working with children in conflict with the law as a practitioner in India, my artistic construction of them feeling “walled” and my qualitative research on their right to participation. To situate my work experience and reflections in theory and academic literature, I conducted research to identify challenges to participation rights that these children face. The key finding from my research is that children are viewed by adult practitioners as future becomings, hence, incapable and incompetent to participate. However, when adult practitioners listen to children, their knowledge and practice is informed by children’s views and perspectives. Listened-to children feel empowered and more able to participate. Thus, the onus is on adult practitioners to create safe spaces for children to share and contribute to decision making. Keywords: children in conflict with the law; right to participation; Article 12 UNCRC; juvenile justice; India. PubDate: Mon, 01 Jul 2024 00:00:00 +000
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